African Journals Online
Journal for Juridical Science

Volume 26, Issue 3, December 2001
Abstracts

Some unfinished new thoughts on unilateral acts of states as a source of international law
Suy, E. 1-11

Abstract: The unilateral acts of states in the form of a declaration concerning a legal or factual situation may create legal obligations for the state making the declaration when made with the intent to be bound. In such circumstances the intention confers on the declaration the character of a legal undertaking by the state to act in accordance with the undertaking. In this article the author revisits the hitherto restrictive definitions of the unilateral act as a source of international law in view of changed practices brought about by the progressive development and codification of the law of treaties.

Legal evaluation of affirmative action in South Africa
Pretorius, J.L. 12-28

Abstract: With its equality jurisprudence only in its infancy stage, affirmative action will provide a difficult challenge to the Constitutional Court. Employment equity and affirmative action, like other projects of social transformation translated into law, need to be balanced with individual and collective needs of security, continuity and national integration. The specific challenge facing the court will be to integrate its approach to affirmative action with its endorsement of the notion of substantive equality and the normative standards it has developed for the determination of unfair discrimination. It is submitted that the latter do provide at least a rudimentary focus, which is sensitive and open-ended enough to accommodate the complex array of competing interests at stake in affirmative action disputes. In this article, the implications of the court's equality approach for affirmative action are considered, with reference to some pertinent issues, such as the applicable standard for the constitutional review of affirmative action, and the fairness and proportionality of affirmative action measures (including the problem of the over- or underinclusiveness of affirmative action). The present state of South African case law on the subject is considered, with comparative references to approaches adopted in other jurisdictions.

Wat is die betekenis van boerdery vir inkomstebelastingdoeleindes?
Bobbert, M.C.J. 29-61

Abstract: The question is frequently asked whether certain activities by a taxpayer may be regarded as farming for income tax purposes. If so, certain farming expenses will be allowed as deductions in terms of the First Schedule to the Act which otherwise would not have been the case. Having indicated how the taxable income of a taxpayer is calculated, the definition of a trade is referred to. The meaning of farming is not defined, but in s 26 reference is made to pastoral, agricultural and other farming operations. There are certain sections in the Act, paragraphs in the First Schedule to the Act and practice notes which refer to certain types of farming activities. Reference is also made to the interpretation of farming by our courts (High and Special Courts) and the findings of the Special Boards. The viewpoints of several authors are also discussed. Additional examples of farming activities are given and the standard bona fide farming questionnaire by the SAIS is examined. The exigency of a feasibility study is emphasised to determine the viability of a proposed farming project. The following two-pronged test is advocated (i) did the taxpayer genuinely intend to farm and (ii) did he have a reasonable prospect of making a profit from the farming activities in the foreseeable future?

Artikel 6 van die Wet op Binnekennistransaksies - 'n groepsgeding of aksie in die openbare belang vir die regulering van binnekennistransaksies?
Henning, J.J.De Bruin, J. 62-77

Abstract: The Constitution introduced the concept of a class action in the South African legal system in 1993. The Constitution however limited the use of class actions to rights enshrined in the Constitution. The constitutional class action was followed by a proposal by the South African Law Commission for general legislation on class actions and actions in public interest. The Panel for Security Regulation commented on the discussion paper advocating the use of similar legislation in the fight against insider trading. The King Commission again raised the concept of a derivative action in the fight against insider trading resulting in section 6 of the Insider Trading Act. This action shares some of the characteristics of the class action and action in public interest and sets the way forward for the use of this type of legislation in the commercial world.

Die Wet op Getuiebeskerming 112 van 1998 : enkele aspekte oor die praktiese werking daarvan
Kruger, H.B.Oosthuizen, H. 78-96

Abstract: To combat crime and especially serious crime by gangs, racketeers, syndicates and druglords, witnesses who are willing to testify against these criminals, must be protected efficiently. To address this problem the South African legislature amended the Criminal Procedure Act 51 of 1977 and enacted the Witness Protection Act 112 of 1998 to create a witness protection program. This program aims at protecting witnesses whose lives are endangered because of their willingness to give evidence in criminal court cases and other specified proceedings. Certain aspects concerning the practical functioning of the Witness Protection Act 112 of 1998 are discussed as well as the obstacles encountered and the positive contribution of the Act..

Tax laws harmonisation between Lesotho and the Republic of South Africa
Thabane, K.S.Dednam, M.J. 97-115

Abstract: Lesotho is geographically landlocked within the Republic of South Africa. Research has been done at border gates whereat Basotho shoppers are able to claim and gain reimbursement of the value-added tax amounts paid against shopping in South Africa. Basotho have to pay 10% general sales tax due on sales at the Lesotho side of the border. This arrangement is administratively difficult to implement and has therefore led to massive losses of sales tax revenue for Lesotho. Also, having acquired their trading stock free of value-added tax, branches of South African businesses are liable to commodity tax in Lesotho. Research has however revealed contrary practices as indicated. It is submitted that the existence of different laws governing economic activities in countries that cannot avoid interacting with one another leads to skewed distribution of resources amongst these countries. It remains unclear whether the provisions of the Lesotho valueadded tax law will address the widespread abuse of the system as well as the glaring evasion of the tax being experienced by Lesotho today. It is in the light of the abovementioned that the hypothesis of this article was formulated: that the efficient collection of tax revenue, the decline in the abuse of the tax system and the evasion of sales tax, will all occur to some significant extent if, amongst others, the Lesotho value-added tax legislation is in harmony with its South African equivalent. In conclusion the harmonisation of the tax rates provided for by statutes of the two countries is recommended.

The impact of the Constitution on the South African criminal law sphere
Kruger, H.B. 116-135

Abstract: In this article the extent of the impact of the new constitutional dispensation on the South African criminal law sphere is discussed. The influence of the Constitution on certain criminal offences, sentencing, justifiable homicide and specific presumptions are focussed on.